ACE Federal Policy Update Addresses State Authorization

The American Council on Education held a federal policy update webinar yesterday, which included a discussion of the U.S. Department of Education's (ED's) pending regulations on state authorization requirements in relation to distance learning. (See the EDUCAUSE state authorization resource page, which includes an overview and links to additional background on the topic.)

It was noted that ED had recently issued a "Dear Colleague Letter" indicating that it would not enforce compliance with the state authorization regulations set to take effect on July 1, 2011, until July 1, 2014, as long as an institution could demonstrate that it was making "good faith efforts" to comply. What the letter does not address, which arose during the webinar, is the process and timeframe in which ED might take steps to determine whether an institution is appropriately pursuing good faith efforts to establish state authorization in states where it needs to do so. (Note that the “Dear Colleague Letter” provides guidance on what ED would consider good faith efforts.)

Jennifer Blum, vice chair of the Government and Regulatory Affairs Practice at Drinker Biddle, fielded the question and noted that ED had not indicated it would actively police whether institutions were pursuing such efforts. Instead, she suggested that it might be something ED officials would check in the context of other processes, such as Title IV program reviews or changes of institutional ownership. However, she highlighted the fact that ED has taken a more activist stance on online learning and postsecondary education issues in general, and therefore the emergence of special efforts to assess whether institutions are trying to comply could not be ruled out.

The presenters generally agreed, though, that ED clearly expects institutions to actively try to determine if they are delivering online/distance learning in a state that requires state authorization for that purpose; to identify to the extent they can what the authorization requirements are; and to initiate efforts to meet those requirements once they are known, regardless of considerations such as the cost of state authorization fees or the number of students an institution is serving in the state. They further agreed that ED would likely initiate compliance enforcement efforts against institutions failing in one or more of these steps once such institutions are identified, although gray areas may exist. For example, it isn’t clear whether an institution that explored a state's authorization requirements and found, on advice of legal counsel, that none existed or were applicable would be considered to have made a good faith effort if ED or the state subsequently disagreed with that determination.

If you are interested in viewing the session archive, fee-based access is available.